TMI Blog1951 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the appellants on January 2, 1941, in the Court of the Subordinate Judge, Asansole. That suit came to be filed in circumstances which may now be stated shortly. A suit had been instituted by one Kumar Dakhineswar Malia against Rameswar Malia, Rani Bhaba Sundari and others for partition of the Searsole Raj Estate. One Bhagabati Charan Mitra was appointed receiver of that estate in that suit. On August 10, 1908, the said receiver with the permission of the Court which had appointed him as receiver granted two mining leases, each for 999 years--one in respect of 5/16 share of the Malias in Mouza Monohar Bahal and the other in respect of 230 bighas in village Marich Kota--to a firm then carrying on business under the name and style of Laik Banerjee Company. On the same day the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of Rs. 100,000 advanced by that firm. The Malias joined the receiver in executing the aforesaid leases and the mortgage. As a result of these transactions the firm of Laik Banerjee Company became the lessees for 999 years of the two properties as well as the mortgagee of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and correctly entered in column 20 of Ex. F which is a certified copy of extract from the Register of applications for executions of decrees relating to execution Case No. 118 of 1936. The heading of column 20 is Date on which execution case was finally disposed of and purport of final order." The entry in column 20 under that head is: "D. H. admits receipt of Rs. 76-14/- as costs of this case from the J.D. The execution case is dismissed for nonprosecution-- the attachment already effected in this case continuing. 30th January 1937." The entry under column 11 of that very exhibit reads as follows :-- "Claim case automatically drops as the execution case is dismissed. It is, therefore, rejected without any sort of adjudication. 30th January 1937." In May 1937, the Searsole Raj Estate came under the charge of the Court of Wards. By a Kobala executed with the permission of the Board of Revenue Raja Pramatha Nath Malia and his two sons Kumars Pashupati Nath Malia and Kshitipati Nath Malia represented by Kumar Kshitipati Nath Malia as the Manager of the Searsole Raj Wards Estate conveyed a property known as Senapati Mahal to Deva Prasanna in full settlement of his claim unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition of to-day. Dated 2nd June 1989." The Raja died in August, 1940, leaving the two appellants as his sons and legal representatives. The Bengal Money Lenders Act, 1940 (Bengal Act X of 1940) hereinafter called the Act, came into force on September 1, 1940. On January 2, 1941, the appellants who, as the legal representatives of the Raja, became "borrowers" within the meaning of the Act filed the suit out of which the present appeal has arisen. The suit was filed by the appellants against the respondent under section 36 of the Act praying for reopening the transactions and taking accounts and for release from all liabilities in excess of the limits specified by law. In short, they asked the Court to give them relief by exercising the powers given to the Court by section 36 of the Act. There was also a prayer for reconveyance of the Senapati Mahal. The respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar. On May 8, 1941, the Subordinate Judge settled the issues and fixed June 9, 1941, "for a preliminary hearing of the suit and particularly of such of the issues as have been based on the pleas in bar." E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing has been paid or allowed in account on or after the first day of January, 1939, in respect of the liability referred to in clause (c), order the lender to repay any sum which the Court considers to be repayable in respect of such payment or allowance in account as aforesaid; (e) set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security, order him to indemnify the borrower in such manner and to such extent as it may deem just." It will be noticed- (a) that the provisions of this section apply notwithstanding anything contained in any law for the time being in force, (b) that the powers conferred on the Court or to be exercised either in any suit to which this Act applies or in any suit brought by a borrower for relief under the section and (c) that the Court is called upon to exercise all or any of the powers conferred on it by the section if the Court has reason to believe that the exercise of one or more of the powers will give relief to the borrower. In the present case the borrowers have instituted a substantive suit for relief under section 36 and, therefore, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted or filed on or after the 1st day of January, 1939, or pending on that date" have been read and understood as qualifying the words "any suit or proceeding" in the beginning of the definition as well as the words "proceeding in execution" occurring further down: see per Spens C.J. in Bank of Commerce Ltd. v. Amulya Krishna [1944] F.C.R. 126; A.I.R. 1944 F.C. 18. Accordingly, it has been held in Ram Kumar De v. Abhoya Pada Bhattacharjee 46 C.W.N. 557; A.I.R. 1942 Cal. 441 that where a decree is such that the suit in which it was passed had terminated before January 1, 1939, and no proceeding in execution was started or was actually pending on or after that date it is not a decree in "a suit to which this Act applies"and cannot be reopened. The same view was upheld by a Special Bench of the Calcutta High Court in Aparna Kumari v. Girish Chandra 48 C.W.N, 406., which overruled two earlier decisions to the contrary. The construction put upon section 2 (22)by the Special Bench and the reasons given by them appear to us to be well-founded. In the case now before us, the Suit No. 78 of 1922 was instituted and all the three decrees were passed long before the specified date. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications were ordered to be struck off. This was a practice not justified by the Code and in cases where attachments in execution had already been entered, the question arose whether the effect of an order striking off was that the attachment made upon application for execution was itself struck off or whether it remained notwithstanding such an order. Many other awkward and important questions arose out of this practice and the object of rule 57 was to ensure that this illogical and inconvenient practice should be stopped. Applications for execution were to be definitely dismissed if they were not adjourned to a future date. The object of the last sentence in rule 57 is to settle the question whether, when the application in execution is dismissed any attachment made under that application should fall to the ground or should subsist, and the legislature has provided that it is to fall to the ground." The new rule thus introduced left two distinct courses open to the executing Court in the situation envisaged by the rule. Each course had its advantage as well as its disadvantage. Thus the adjournment of the execution proceedings kept the attachment alive without any speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decree-holder did not use the words "for the present" but only asked the Court "to strike off the execution case keeping the attachment in force." Further, apart from what the parties wanted, the Court made its intention clear in the very order that it passed and which is entered in column 20 of Exhibit F. The Court regarded the willingness of the the decree-holder to enter into a long and protracted negotiation with the judgment- debtor as evidence of unwillingness on the part of the decree-holder to diligently prosecute the execution proceedings and accordingly dismissed the execution case for non-prosecution but thought fit to expressly keep alive the attachment. It is quite obvious that the Court made an order of the third kind mentioned above. The three forms of order permissible under rule 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the tro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the air. It rests upon the solid foundation of a special order which rule 57, as amended, in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under Order XXXVIII, rule 11, where after an order of attachment before judgment a decree is passed in favour of the plaintiff, it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgmentdebtor cannot deal with the property to the disadvantage of the decreeholder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree-holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of Order, XXXVIII rule 11, and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was ever initiated after the decree was passed. In my judgment, the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal and it is not necessary for us to consider the other question raised by the respondent on the strength of section 36 (5) of the Act and I express no opinion on that question. The result is that this appeal must stand dismissed with costs and I order accordingly. KANIA C.J.--I agree. PATANJALI SASTRI J.- -The facts bearing on the dispute in this appeal are fully stated in the judgment of ray brother Das which I have had the advantage of reading and it is unnecessary to recapitulate them here. The appellant mortgagor seeks in these proceedings the reliefs provided by the Bengal Money-lenders Act, 1940 (hereinafter referred to as the Act) in respect of a decree debt payable by him. The respondent who represents the sub-mortgagee decree-holder invokes the protection of two exemptions contained in the Act: (1) Section 86 (1), proviso (ii), which exempts inter alia "any decree other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939". This raises a dispute as to whether the respondent s decree was passed in a suit to which the Act applies. (2) Section 36 (5) which exempts "the rights of any assignee or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". The attachment was cancelled by the court only on 2nd June, 1939, when the decree in question was recorded as adjusted and then, and not before, could execution of the decree be properly considered to have terminated. In this view, a "proceeding in execution" was pending on the 1st day of January, 1939, and the respondent s decree must be taken to have been passed "in a suit to which this Act applies , with the result that the respondent s claim to exemption under proviso (ii) to sub-section (1) of section 36 of the Act must fail. I am, however, of opinion that the respondent s claim to recover his decree debt is protected under section 36 (5). There is no question here but that the submortgage to the respondent s predecessor in title was bona fide. Nor could he have received the notice referred to in clause (a) of sub-section (1) of section 28 as the transaction took place long before the Act was passed. It is not disputed that section 36 (5) applies to pre-Act debts. [See Renula Bose v. Manmatha Nath Bose]. The only question, therefore, is whether the respondent as sub-mortgagee is an assignee within the meaning of sub-section (5) of section 36. The learned Judges in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned only with assignment of debts" (pp. 83-84). The sub-mortgage here in question also contains an assignment of the debt due under the original mortgage debt and of "the entire interest" of the original mortgagee. After reciting their original mortgage, the mortgagees proceed to state in the deed of sub-mortgage: "We mortgage all that is at present due and that will in future become due to us, the first, second, third and fourth parties, on account of the said one lakh of rupees together with interest and the entire interest under the mortgage taken by us on the basis of the said Indenture in respect of five annas share of the said Niskar Mouza Monoharbahal and in respect of sixteen annas of the surface and underground rights in the said Mouza Marichkota and we make over the said Deed of Indenture to you". The decision referred to above is, therefore, directly in point and rules the present case. It was suggested that the said decision was inconsistent with the earlier decisions of the same tribunal in Ram Kinkar Banerjee v. Satya Charan Srimani 64 I.A. 50. (2) 68 I.A. 67., and Jagadamba Loan Co. v. Raja Shiba Prasad Singh. Stress was laid upon the expression "all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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